Judge sets out stark difficulties with some Surrogacy arrangements

The increasing number of surrogate children not properly registered by their parents is a “ticking legal timebomb”, a High Court Judge has claimed.

Speaking at a surrogacy conference earlier this week, Mrs Justice Theis said such children could end up both “stateless and parentless”..

Under English law, the birth mother of a child is its legal mother even if she had a surrogate role . The legal status of parent can only be transferred to the couple or individual who commissioned the surrogacy via a parental order. In the majority of cases, these are issued when the couple or individual returns to the UK with a baby born via a foreign fertility clinic, since commercial surrogacy is illegal in England and Wales.

However, only a minority of commissioning parents do in fact apply for parental orders. According to The Guardian, while around 2000 children are born to surrogate mothers for British commissioning parents every year, just 241 parental order applications were made in 2014.

Dame Theis told delegates:

“My concern is about the people who are not making applications.”

Without a clear, resolved legal status, such children could find themselves in difficulty if the commissioning couple separate or pass away. Any claim on the commissioning parents’ estates would be uncertain while they could retain a claim on the birth parents’ estate, even if they lived abroad. Even applying for a new passport could be problematic, said the Judge.

She explained:

“The best interests of the child born to these arrangements is to have legal certainty and clarity. If no [parental] order is made, there is the psychological impact of discovering that the mother is not their [birth] mother. And there’s practical issues in terms of inheritance and other financial matters. The court’s paramount consideration is the child’s long-term welfare needs.”

Publication of anonymised parental order judgements could help raise awareness of the need to register, said Mrs Justice Theis, but in the longer term, new international legislation may be required to better address the needs of surrogate children.

All parental order applications made to date have been granted by the courts.